CHAN and THE OWNERS OF EAST FREMANTLE SHOPPING CENTRE WEST STRATA PLAN - 8618
[2005] WASAT 302
•18 NOVEMBER 2005
CHAN and THE OWNERS OF EAST FREMANTLE SHOPPING CENTRE WEST STRATA PLAN - 8618 [2005] WASAT 302
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 302 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:2868/2005 | DETERMINED ON THE PAPERS | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) | 18/11/05 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | KHENG SU CHAN THE OWNERS OF EAST FREMANTLE SHOPPING CENTRE WEST STRATA PLAN - 8618 |
Catchwords: | Strata titles – Interim application – Whether resolution invalid – Whether resolution passed for ulterior purposes |
Legislation: | Strata Titles Act 1985 (WA), s 82 |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : CHAN and THE OWNERS OF EAST FREMANTLE SHOPPING CENTRE WEST STRATA PLAN - 8618 [2005] WASAT 302 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 18 NOVEMBER 2005 FILE NO/S : CC 2868 of 2005 BETWEEN : KHENG SU CHAN
- Applicant
AND
THE OWNERS OF EAST FREMANTLE SHOPPING CENTRE WEST STRATA PLAN - 8618
Respondent
Catchwords:
Strata titles – Interim application – Whether resolution invalid – Whether resolution passed for ulterior purposes
Legislation:
Strata Titles Act1985 (WA), s 82
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Respondent : Mr P Monaco
Solicitors:
Applicant : Self-represented
Respondent : Godfrey Virtue & Co
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The applicant made an interim application for an order setting aside a resolution of the strata company on the grounds that it had been passed for an ulterior purpose and that the notice of the resolution was not adequately clear.
2 The Tribunal concluded that in some respects no serious issue for determination at a final hearing was raised; to the extent that it might be assumed that there was a serious issue for determination, the balance of convenience did not justify the grant of interim relief. Further as the substantive application was struck out, there were no proceedings ancillary to which interim relief could be granted and, in any event, no urgent circumstances had been demonstrated. The application was accordingly dismissed.
The proceedings
3 On 21 July 2005, the applicant commenced proceedings against the respondent seeking orders for the appointment of an administrator. At the same time an application was made for an interim order pursuant to s 97 of the Strata Titles Act1985 (WA) (the Act) invalidating a resolution passed at an Extraordinary General Meeting of the respondent on 14 July 2005.
4 The resolution passed was in accordance with and on the terms of a notice of motion contained in an annexure to the notice of meeting dated 28 June 2005.
5 The supporting affidavit sworn by the applicant and the oral submissions advanced raised many allegations. The allegations are capable of being distilled to cover the following issues.
1. Did the notice of meeting adequately give notice of the resolution proposed?
2. Was the resolution passed for an ulterior purpose;
a) because no extra funds were required as the respondent had accumulated sufficient funds and,
b) the levy was to raise funds for the purposes of litigation which had no merit?
(Page 4)
Adequacy of the notice
6 The notice of meeting, dated 28 June 2005, advised of the meeting to be held on 14 July 2005 at 10.30am, set out the location and the agenda for the meeting which included item 7 "Special Business CS Annexure A". Annexure A stated as follows.
"OWNERS OF EAST FREMANTLE SHOPPING CENTRE WEST
STRATA PLAN 8618
147 CANNING HIGHWAY, EAST FREMANTLE
EXTRAORDINARY GENERAL MEETING 14/01/2005
AGENDA ITEM: SPECIAL BUSINESS – ANNEXURE A
1. Raising funds for legal action regarding parking agreements. The Strata Company, Council of Owners have had discussion and information from solicitors Godfrey Virtue & Co. relating to the various parking agreements, which are registered on the strata plan. The council of owners wish to ratify the agreements to the benefit of the Strata Company. The attached opinion from Godfrey Virtue & Co has been prepared and they advise to employ the services of a Barrister or Queens Council to represent the Strata Company at the hearing. The Council of Owners wish to raise sufficient funds by way of special contribution (levy), to fund portion of the legal costs.
MOTION UNDER NOTICE
To authorise the Strata Council to engage a Barrister or Queens Council through Solicitors, Godfrey Virtue & Co to represent the Strata Company and prepare and provide an opinion and Statement of Claim with respect to the action regarding the parking agreements. To raise a special levy of $5,000.00 (in terms of unit entitlement) towards the cost of legal opinion and representation at court if required. Levy to be due and payable by 31/8/05.
NOTE: The by-laws provide that only the items of business on the agenda can be resolved at this meeting
(Page 5)
- It is not appropriate for other matters to be raised"(Produced as written.)
7 In the view of the Tribunal, the notice could not have been any clearer. It is noted that an opinion from the respondent's solicitors was also attached. The Tribunal finds there is no serious issue for determination in relation to this aspect of the application.
Was the resolution passed for an ulterior motive?
8 The applicant's assertion that the respondent had sufficient accumulated funds was based on an estimate of the income received by the strata company over a period of many years, but failed to take into account any expenditure incurred. The Tribunal noted that the applicant had referred in a number of instances to very specific amounts, which suggested that the applicant had received and relied upon the respondents' accounts. In response to questioning from the Tribunal, the applicant conceded that was the case. The applicant did not produce the accounts so that any assessment could be made of the expenditure.
9 In the Tribunal's view no serious issue for determination in relation to this aspect of the matter was raised.
10 The applicant further contended that there was no merit in the proposed litigation for which funds were to be raised by the levy in question. The litigation related to the enforceability of easements granted to adjoining land owners. It became readily apparent from the parties submissions that the litigation is complex and that the respondent is proceeding with all due caution, relying firstly on the advice of its solicitors and secondly, on advice to be obtained from a leading Queen's Counsel.
11 The Tribunal declined to enter into any detailed examination of the issues raised in the proposed litigation. It is apparent that a clear majority of the lot owners support the litigation and that even assuming that a serious issue is raised, the balance of convenience would not justify the grant of interim relief. If interim relief were to be granted, on the basis of the Tribunal's assessment of the litigation, without the issue being developed as fully and as exhaustively as they will undoubtedly be in the Supreme Court, the Supreme Court action would be brought to an end by a lack of funds.
12 In any event, the application demonstrated no urgency. If the applicant maintains that she is correct in her views, notwithstanding the
(Page 6)
- conclusions of this Tribunal, she may simply decline to pay the levy and it is open to her to defend any enforcement proceedings against her.
13 Further, before this decision could be delivered, the application for substantive relief was struck out by an order made on 1 November 2005 so that there are no longer any proceedings on foot, ancillary to which it interim relief could be granted.
Order
14 For the above reasons the Tribunal orders as follows.
1. The application for interim relief is dismissed.
I certify that this and the preceding [14] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
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